Introduced by Assembly Members Weber and McCarty(Principal coauthors: Assembly Members Holden, Jones-Sawyer, and Mark Stone)(Principal coauthors: Senators Bradford and Mitchell)

February 16, 2017

An act to amend Sections 196 and amend, repeal, and add Section 835a of the Penal Code, relating to criminal procedure.

LEGISLATIVE COUNSEL'S DIGEST

AB 931, as amended, Weber.
Criminal procedure: use of force by peace officers.

Existing law authorizes a peace officer to make an arrest pursuant to a warrant or based upon probable cause, as specified.

Under existing law, an arrest is made by the actual restraint of the person or by submission to the custody of the arresting officer.

Existing law authorizes a peace officer to use reasonable force to effect the arrest, to prevent escape, or to overcome resistance. Existing law does not require an officer to retreat or desist from an attempt to make an arrest because of resistance or threatened resistance of the person being arrested.

This bill would, notwithstanding that provision,
as of January 1, 2020, require peace officers to attempt to control an incident by using time, distance, communications, and available resources in an effort to deescalate a situation whenever it is safe safe, feasible, and reasonable to do so.

Under existing law, the use of deadly force resulting in the death of a person is justified when it was necessarily committed in overcoming actual resistance to an arrest, when it was necessarily committed in apprehending a felon who had escaped from custody, or when it was necessarily committed in arresting a person charged with a felony and who was fleeing from justice or resisting arrest.

Existing case law prohibits the use of deadly force by a peace officer unless,
among other criteria, there is a reasonable fear of death or serious bodily harm to the officer or another.

This bill would limit the use of deadly force, as defined, by a peace officer to those situations where it is necessary, as defined, to prevent defend against a threat of imminent and serious bodily injury or death to the officer or to another person, as specified. The bill would prohibit the use of deadly force by a peace officer in a situation where an individual poses a risk only to himself or herself. The bill would also limit the use of deadly force by a peace officer against a person fleeing from arrest or imprisonment to only those situations in which the officer has probable cause to believe that the person has committed, or intends to commit, a felony involving
serious bodily injury or death, and there is an imminent risk of a threat of imminent death or serious bodily injury or death to the officer or to another person if the subject is not immediately apprehended. The bill would make these provisions operative as of January 1, 2020.

This bill would make a homicide committed by a peace officer justifiable only if the use of deadly force by a peace officer was consistent with the aforementioned provisions.

Under existing law, a homicide is justified when a person is acting in
self-defense or defense of another, as specified.

The bill would make this defense unavailable to an officer charged with manslaughter whose actions were such a departure from the expected conduct of an ordinarily prudent or careful officer in the same circumstances as to be incompatible with a proper regard for human life.

This bill would make legislative declarations regarding its provisions.

Digest Key

Vote:
MAJORITY
Appropriation:
NO
Fiscal Committee:
YESNO
Local Program:
NO

Bill Text

The people of the State of California do enact as follows:

SECTION 1.Section 196 of the Penal Code is amended to read:

196.

(a)Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, as follows:

(1)In obedience to any judgment of a competent court.

(2)When resulting from physical force used consistent with Section 835a.

(b)A defense to a charge of homicide in violation of Section 192 shall not be available pursuant to this section or Section 197 for a public officer whose conduct is such a departure from the expected conduct of an ordinarily prudent or careful officer under the
same circumstances as to be incompatible with a proper regard for human life.

SECTION 1.

Section 835a of the Penal Code is amended to read:

835a.

Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.

A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.

This section shall remain in effect only until January 1, 2020,
and as of that date is repealed.

SEC. 2.

Section 835a of the Penal Code is amended added to read:

835a.

(a) The Legislature finds and declares that all of the following:

(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that must be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature
further finds and declares that every person has a right to be free from excessive force by officers acting under color of law.

(2) That a peace officer’s decision to use force must be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances must account for occasions when officers may be forced to make quick judgments about using force in circumstances that are tense, uncertain, and rapidly evolving.

(b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable
force, other than deadly force, to effect the arrest, to prevent escape, or to overcome resistance.

(c) (1)A peace officer who makes or attempts to make an arrest shall not be required to retreat or desist from his or her efforts by reason of the resistance or threatened resistance of the person being arrested and shall not be deemed an aggressor or lose his or her right to self-defense by the use of reasonable force to effect the arrest, to prevent escape, or to overcome resistance. However, peace officers shall attempt to control an incident by using time, distance, communications, and available resources in an effort to
deescalate a situation whenever it is safe safe, feasible, and reasonable to do so. This subdivision shall not be construed to conflict with the limitations on the use of deadly force set forth in subdivision (d) or to prohibit law enforcement agencies from requiring peace officers to employ reasonable alternatives to the use of force or other tactics designed to make arrests without the use of force or with the least amount of force necessary.

(2) For purposes of this subdivision, “feasible” means capable of being done or carried out to achieve a lawful objective without increasing the risk to the officer or another
person.

(d) (1) (A) Notwithstanding any other law, a A peace officer may use deadly force only when such force is necessary to prevent
defend against a threat of imminent death or serious bodily injury to the officer or to another person.

(B) As used in this paragraph, the following terms have the following meanings:

(i) “Necessary” means that, given the totality of the circumstances, circumstances known to the officer at the time,
an objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent imminent death or serious bodily injury to the peace officer or to another person.

(ii) “Reasonable alternatives” mean tactics and methods, other than the use of deadly force, of apprehending a subject or addressing a situation that do not unreasonably increase the threat posed to the peace officer or another person. Reasonable alternatives may include, but are not limited to, verbal communications, warnings, deescalation, and tactical repositioning, along with other tactics and techniques intended to stabilize the situation and reduce the immediacy of the threat so that
more time, options, and resources can be called upon to resolve the situation without the use of deadly force.

(iii) “Totality of the circumstances” includes means all facts known to the peace officer at the time, including the actions of the subject and the officer leading up to the use of deadly force.

(iv) A “threat of imminent death or serious bodily injury” exists when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death
or serious bodily injury to the peace officer or another person.

(2) A peace officer shall not use deadly force against an individual based on the danger that individual poses to himself or herself, if the individual does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

(3) A peace officer may use deadly force against fleeing persons only when both of the following are true:

(A) The peace officer has probable cause to believe that the person has committed, or intends to commit, a felony involving death or serious bodily injury.

(B) There is an imminent risk of
a threat of imminent death or serious bodily injury to the peace officer or to another person if the subject is not immediately apprehended.

(4) For the purposes of this subdivision, “deadly force” means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.

(5) This subdivision does not limit the ability of a peace officer to assert a defense to a charge of homicide as justifiable self-defense under Sections 196 and 197.